Case No. 4:95-cr-00019-LPR-4
LEE P. RUDOFSKY, UNITED STATES DISTRICT JUDGE
On April 7, 2020, Defendant Earnes Lee Smith filed a Motion for Immediate Release Pursuant to the Provisions of Compassionate Release. As explained below, Mr. Smith's Motion is dismissed for lack of jurisdiction.
Def's. Mot. for Compassionate Release (Doc. 429).
I. Background and Procedural History.
In early 1992, Earnes Lee Smith and his criminal associates became the subjects of an "ongoing investigation of drug trafficking in the Central Arkansas area by the Drug Enforcement Agency (DEA), Arkansas State Police (ASP), and Federal Bureau of Investigation (FBI)." The investigation revealed that, on March 27, 1992, Mr. Smith's son murdered Daryl Cooperwood in a vacant lot in Beebe, Arkansas. Mr. Smith had contacted his son about the potential murder after Mr. Smith discovered that there was a $5,000 bounty for Mr. Cooperwood's death. Mr. Smith's son traveled to Arkansas, killed Mr. Cooperwood, and split the $5,000 reward with his father. A jury convicted Mr. Smith of "Aiding and Abetting Murder for Hire." On August 29, 1996, Mr. Smith was sentenced to life in prison for his role in the murder. He was 60 years old.
Earnes Lee Smith Presentence Investigation Report at 7.
Id. at 7-8.
Def's. Mot. for Compassionate Release (Doc. 429) at 1.
See Doc. 230.
Fast forward about 25 years. On June 11, 2018, Mr. Smith filed a request for compassionate release with the warden of his correctional facility. According to Mr. Smith, his 2018 request was "premised upon extraordinary and compelling medical issues, which are age related, are incurable, and will only continue to inure to his deficit." His medical issues at that time included diabetes, age-related cataracts, hearing loss, hypertension, edentulism, hernia, pyelonephritis, hypertrophy of the prostate with urinary obstruction, peripheral vascular disease, and a past history of colon cancer. The warden denied Mr. Smith's request. On October 16, 2018, Mr. Smith appealed the denial with the Bureau of Prisons ("BOP") Central Office. On December 4, 2018, his appeal was denied.
United States' Suppl. Br. (Doc. 436).
Def's. Mot. to Appoint Counsel (Doc. 426) at 6.
Def's. Mot. for Compassionate Release (Doc. 429) at 1. Although Mr. Smith's instant Motion identifies additional medical conditions, those additional conditions were not present at the time he made or appealed his 2018 request for compassionate release. For example, Mr. Smith was not diagnosed with Presbyopia until February 1, 2019. He was not diagnosed with Joint Disorder until November 14, 2018, after he had already filed his appeal. Compare Ex. 1 to Def's. Mot. for Compassionate Release (Doc. 429-1) at 1-2, with Def's. Mot. to Appoint Counsel (Doc. 426) at 14-15.
Ex. 2 to Def's. Mot. for Compassionate Release (Doc. 429-2) at 1.
Id. at 2.
On January 22, 2019, Mr. Smith filed a pro se Motion to Appoint Counsel "for the purpose of perfecting and filing a Motion for Compassionate Release under 18 U.S.C. § (c)(1)(A)(i) as allowed by the First Step Act." The Court denied Mr. Smith's Motion because he "presented no evidence to support his claims of ‘extraordinary and compelling health issues.’ " In other words, Mr. Smith's Motion to Appoint Counsel was denied because the Court concluded that Mr. Smith's underlying request for release lacked merit. Understandably, in light of this ruling, Mr. Smith did not file a pro se motion for compassionate release with the Court. Why would he? The Court had already addressed and rejected the would-be merits of his claim.
Def's. Mot. to Appoint Counsel (Doc. 426) at 1. In the past, a motion for compassionate release could only be filed by the Director of the BOP. But on December 21, 2018, the First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to authorize a defendant to file a court motion on his own behalf. See First Step Act of 2018, PL 115-391, December 21, 2018, 132 Stat 5194, 5239.
Order Denying Mot. to Appoint Counsel (Doc. 427).
Instead, several months later, in the Spring of 2019, Mr. Smith filed a new request for compassionate release with the warden of his facility. This request was dated March 14, 2019, and stamped received on April 5, 2019. Mr. Smith's 2019 request referenced and relied on the medical records that were available to the warden "through Medical." At that time, Mr. Smith's medical records included at least four new medical issues that were not previously considered in his 2018 request. His new diagnoses included astigmatism, presbyopia, joint pain, and joint disorder. On April 25, 2019, the warden denied Mr. Smith's new request. The warden's denial letter informed Mr. Smith that if he was "dissatisfied with this response," he could "file an appeal pursuant to Program Statement 1330.18, Administrative Remedy Program, within 20 calendar days of the date of this response." Mr. Smith did not appeal the warden's ruling or otherwise act on the warden's denial.
Earnes Lee Smith, March 14, 2019, Appl. for Compassionate Release under PS 5050.49; see also Text Order (Doc. 434).
Earnes Lee Smith, March 14, 2019, Appl. for Compassionate Release under PS 5050.49.
Compare Ex. 1 to Def's. Mot. for Compassionate Release (Doc. 429-1) at 1-2, with Def's. Mot. to Appoint Counsel (Doc. 426) at 14-15.
Inmate Req. to Staff Member Resp., April 25, 2019.
Nearly a year later, in February of 2020, the COVID-19 crisis began in earnest in the United States. On April 7, 2020, Mr. Smith filed the instant Motion for Compassionate Release with the Court. His Motion is based on his underlying medical conditions and the consequent elevated risk of contracting COVID-19, of dying from COVID-19, or of COVID-19 exacerbating his current medical conditions. On April 15, 2020, the United States responded to the Motion. Among other things, the United States argues that Mr. Smith "has presented a new motion for compassionate release based on concerns about the coronavirus," and that Mr. Smith must first exhaust his administrative remedies with respect to this coronavirus-related request.
Def's. Mot. for Compassionate Release (Doc. 429).
Id. at 8-9.
United States' Resp. to Mot. for Compassionate Release (Doc. 432).
Id. at 5.
In reply, Mr. Smith strongly disagrees with the United States' analysis. Notwithstanding this position, on April 22, 2020, Mr. Smith filed a third request for compassionate release with the warden of his facility. Mr. Smith's third request is based on his medical conditions, age, and COVID-19. This is the only request that includes COVID-19 as an extraordinary and compelling reason for release. As far as the Court knows, the warden has not yet issued a determination regarding Mr. Smith's most recent request.
See Def's. Second Reply to United States' Resp. to Mot. for Compassionate Release (Doc. 435) at 2.
Id. at 2 n.1.
II. Is 18 U.S.C. § 3582(c)(1)(A) a Jurisdictional Rule or a Claim-Processing Rule?
The United States contends that the Court does not have jurisdiction over Mr. Smith's Motion because Mr. Smith failed to exhaust his administrative remedies under 18 U.S.C. § 3582(c)(1)(A). The Court must resolve challenges to its jurisdiction before considering anything having to do with the merits of Mr. Smith's request. To do this, the Court must determine whether § 3582(c)(1)(A) is a jurisdictional rule or a mandatory claim-processing rule.
United States' Resp. to Mot. for Compassionate Release (Doc. 432) at 3.
See Anderson as trustee for next-of-kin of Anderson v. City of Minneapolis , 934 F.3d 876, 880 (8th Cir. 2019) ("Before reaching the merits of the dispute, ‘[w]e begin with jurisdiction, which is always our first and fundamental question.’ ") (quoting Franklin v. Peterson , 878 F.3d 631, 635 (8th Cir. 2017) ).
Non-lawyers might reasonably ask why, in the middle of the most serious health crisis the country has faced in a century, the Court should focus on technical legal arguments about jurisdiction? Shouldn't the Court just be concerned about whether Mr. Smith deserves to get out of jail to avoid the (potentially fatal) risks associated with COVID-19? The answer lies in the fact that jurisdiction is not just some legal technicality. It is one of the cornerstones of our democratic republic. It is one of the most important ways that our Constitution ensures that unelected judges—who are not directly accountable to the people—do not usurp the role of the elected, and thus far more accountable, branches of government. With respect to the judicial branch, the requirement that judges not act unless they have jurisdiction (meaning authority and power), is the principal manifestation of the horizontal separation of powers that our founders knew was critical to the survival of our form of government.
See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (noting that a court that acts "beyond the bounds of authorized judicial action ... offends fundamental principles of separation of powers"); see also The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961) (acknowledging that "[n]o political truth is ... of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty" than that the separation of powers is an "essential precaution in favor of liberty").
The existence of a crisis does not make the question of jurisdiction any less fundamental. In fact, just the opposite. It is in times of crisis that the temptation for government officials to exceed their authority or to turn a blind eye to constitutional limitations is at its zenith. The temptation is often born out of a desire to do what one thinks is good and helpful to others. But the road to hell is paved with good intentions. It is times like these when it is most important for a court to take a breath and ensure it is only acting where it has the constitutional authority to do so. The protections of the Constitution—including structural protections—are most important in times where they are the most inconvenient. The Court is exceedingly sympathetic to the health concerns that COVID-19 poses to prisoners. But as horrific as COVID-19 may be, and as susceptible as prisoners may be to it, the Court is duty-bound to only exercise the specific authority that has been entrusted to it.
On Fire Christian Ctr., Inc. v. Fischer , No. 3:20-CV-264-JRW, 453 F.Supp.3d 901, 907–08 (W.D. Ky. Apr. 11, 2020) (enjoining the Mayor of Louisville from enforcing a COVID-19 related ban on "religious services, even if congregants remain in their cars during the service").
See The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961) ("If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.").
" ‘Only Congress may determine our subject-matter jurisdiction,’ and we have ‘no authority to create equitable exceptions to [its] jurisdictional requirements.’ " As a general matter, "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." But some courts have held that this general grant of jurisdiction does not permit district courts "to set aside a criminal judgment that contains a term of imprisonment at any time and for any reason." Instead, district courts are only empowered to set aside a term of imprisonment in the limited situations enumerated in 18 U.S.C. § 3582(c).
Williams v. York , 891 F.3d 701, 706 (8th Cir. 2018) (internal citations omitted) (quoting Hamer v. Neighborhood Hous. Servs. of Chicago , ––– U.S. ––––, 138 S. Ct. 13, 17, 199 L.Ed.2d 249 (2017) and Bowles v. Russell , 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ).
18 U.S.C. § 3231.
United States v. Spaulding , 802 F.3d 1110, 1112 (10th Cir. 2015), cert. denied , ––– U.S. ––––, 136 S. Ct. 1206, 194 L.Ed.2d 211 (2016) ; see also, United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020) (noting that failure to exhaust under § 3582(c)(1)(A) "presents a glaring roadblock foreclosing compassionate release"); United States v. Austin , 676 F.3d 924, 927 (9th Cir. 2012) (describing § 3582(c) as a "narrow exception" to the general rule that "courts lack jurisdiction to ‘modify a term of imprisonment once it has been imposed’ ") overruled on other grounds by United States v. Davis , 825 F.3d 1014 (9th Cir. 2016) ; United States v. Williams , 607 F.3d 1123, 1126 (6th Cir. 2010) (stating that § 3582 "sets forth a statutory basis for limiting the district courts' jurisdiction"); United States v. Garcia , 606 F.3d 209, 214 (5th Cir. 2010) (noting that the interpretation of § 3582(c) presents a "jurisdictional question").
Spaulding , 802 F.3d at 1112.
In U.S. v. Auman , the Eighth Circuit considered, among other things, whether the district court in that case had jurisdiction to modify a sentence under 18 U.S.C. § 3582(b) and § 3582(c)(2). The Eighth Circuit held that § 3582(b) "does not grant jurisdiction to a district court to do anything, let alone correct an illegal sentence." But when a defendant meets the requirements of 18 U.S.C. § 3582(c)(2), the district court is endowed with "limited jurisdiction" to modify a sentence. Because the defendant in Auman did not meet § 3582(c)(2)'s requirements, the Eighth Circuit concluded that neither it nor the district court had jurisdiction to entertain the defendant's challenges. The take-away from Auman is two-fold. First, a district court's original jurisdiction under 18 U.S.C. § 3231 does not extend to a term of imprisonment once it has been imposed. Second, because 18 U.S.C. § 3582(c)(2) confers jurisdiction, whether a court has authority to modify a sentence under § 3582(c)(2) presents a jurisdictional question.
8 F.3d 1268, 1271 (8th Cir. 1993).
18 U.S.C. § 3582(b) ("[A] judgment of conviction that includes [a term of imprisonment] constitutes a final judgment for all other purposes.").
Even though Mr. Smith's instant Motion seeks relief under § 3582(c)(1), as opposed to § 3582(c)(2), this Court is bound by the Eighth Circuit's ruling in Auman . Indeed, although Auman focused entirely on whether it had jurisdiction under § 3582(c)(2), the operative "jurisdictional" language is found more broadly in § 3582(c), which states that a "court may not modify a term of imprisonment once it has been imposed except that " a court may do so if the (c)(1) or (c)(2) requirements are satisfied. The Court sees no principled way to draw a distinction between the jurisdictional nature of § 3582(c)(2) and the kindred nature of § 3582(c)(1). The relevant provision in this case— 18 U.S.C. § 3582(c)(1)(A) —is governed by the exact same language as the provision in Auman .
18 U.S.C. § 3582(c) (emphasis added).
See United States v. Read-Forbes , No. CR 12-20099-01-KHV, 2020 WL 1888856, at *3 (D. Kan. Apr. 16, 2020) ("[F]or determining whether the administrative exhaustion requirement of subsection (c)(1)(A) is jurisdictional, the Court sees no reason to treat that subsection's requirements any differently. Based on the ‘text, context, and relevant historical treatment’ of Section 3582(c), the Court treats as jurisdictional the administrative exhaustion requirement in subsection (c)(1)(A).").
Mr. Smith contends that § 3582(c)(1)(A) is not a jurisdictional limitation, but is rather a mandatory claim-processing rule. In making this argument, Mr. Smith completely ignores Auman despite the United States' explicit reliance on the case. Perhaps Mr. Smith believes that more recent Supreme Court precedents undermine Auman . In recent years, the Supreme Court has acknowledged that some lower courts have, at times, mislabeled claim-processing rules as jurisdictional rules. To address this problem, the Supreme Court has endeavored to clarify the method for distinguishing between claim-processing rules and jurisdictional rules. The distinction it emphasizes turns on the clarity of a statute's language. While Congress need not " ‘incant magic words’ to render a prescription jurisdictional," only a requirement that "speak[s] to a court's authority" or refers "to the jurisdiction of the district courts," is "of a jurisdictional cast." On the other hand, rules that simply "promote orderly progress of litigation by requiring that the parties take certain procedural steps at certain times," are not jurisdictional.
See United States' Resp. to Mot. for Compassionate Release (Doc. 432) at 6. Mr. Smith also fails to address post-Auman Eighth Circuit rulings. See e.g., United States v. Carrillo , 720 F. App'x 815 (8th Cir. 2018) (unreported) (citing Auman as the basis for rejecting the defendant's challenge "because section 3582(c)(2) confers jurisdiction only to determine whether a sentence should be reduced due to a retroactive Guidelines amendment, not for unrelated challenges to the sentence") (emphasis added); United States v. Harris , 574 F.3d 971, 973 (8th Cir. 2009) (affirming the district court's conclusion that "it lacked jurisdiction ... under § 3582(c)(2)"); United States v. Gamble , 572 F.3d 472, 475 (8th Cir. 2009) (opining that § 3582(c)(2) "limits the district court's authority" and concluding that "the district court was without jurisdiction" to consider the defendant's challenge). But see United States v. Koons , 850 F.3d 973, 979 (8th Cir. 2017), aff'd, ––– U.S. ––––, 138 S. Ct. 1783, 201 L.Ed.2d 93 (2018) (determining that the defendants were "ineligible for § 3582(c)(2) sentencing reductions" without addressing whether the district court had jurisdiction); United States v. Long , 757 F.3d 762, 763 (8th Cir. 2014) (affirming a denial of a sentence reduction motion under § 3582(c)(2) without discussing the statute's jurisdictional nature); United States v. Reeves , 717 F.3d 647, 648 (8th Cir. 2013) (same).
Fort Bend Cty., Tex. v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1849-50, 204 L.Ed.2d 116 (2019) (listing and briefly describing "an array of mandatory claim-processing rules and other preconditions to relief" that the Court has characterized as "nonjurisdictional").
Id. at 1849 (quoting E.P.A. v. EME Homer City Generation, L.P. , 572 U.S. 489, 512, 134 S.Ct. 1584, 188 L.Ed.2d 775 (2014) ).
Id. at 1850.
The Supreme Court has not ruled directly on the question of whether § 3582(c) is a jurisdictional or claim-processing rule. And it is not clear how it would rule based on its recent clarifications regarding the distinction between jurisdictional rules and claim-processing rules. There is at least some reason to believe that the Supreme Court might consider § 3582(c) to be of a "jurisdictional cast." Indeed, the Court has clearly stated that § 3582(c)(2) "establishes an exception to the general rule of finality" for a term of imprisonment. Congress, via § 3582(c), "has authorized courts to ‘reduce [a] term of imprisonment.’ " Said differently, § 3582(c) "giv[es] courts the power to ‘reduce’ an otherwise final sentence" in limited situations. But there is also some reason to believe the Supreme Court could go the other way. After all, the statute at issue does not itself explicitly contain the terms "jurisdiction," "authority," or "power." The important point, however, is that nothing in the Supreme Court's recent cases would justify this Court ignoring the controlling holding of the Eighth Circuit in Auman . The Eighth Circuit may well decide to switch course in light of the Supreme Court's recent doctrinal clarifications. Or the Eighth Circuit may stand pat. Or the Eighth Circuit might conclude that what Auman explicitly and repeatedly referred to as a jurisdictional rule was, in reality, a claim-processing rule. That is a decision for the Eighth Circuit, not the District Court. The District Court's role here is to faithfully apply Auman "unless and until" it is "reversed by the Supreme Court," overruled by the Eighth Circuit sitting en banc, or becomes clearly irreconcilable with post- Auman Supreme Court precedent.
Id. (emphasis added).
Id. at 825 (emphasis added).
See In Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (noting that it is "the prerogative" of a superior court to overrule its own decisions).
United States v. Robinson , 697 F. App'x 486, 488 (8th Cir. 2017) (unreported); see also United States v. Green , 722 F.3d 1146, 1150 (9th Cir. 2013) (reasoning that a circuit's precedent should be applied unless an intervening Supreme Court ruling "undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable"). In Koons v. United States , the United States Supreme Court affirmed a decision of the Eighth Circuit that upheld the denial of sentencing modification motions under § 3582(c)(2). See ––– U.S. ––––, 138 S. Ct. 1783, 201 L.Ed.2d 93 (2018). In reaching this decision, the Supreme Court did not discuss whether § 3582(c)(2) was jurisdictional in nature; however, the Court did not sua sponte question its own or the lower courts' jurisdiction in the case. Id. It's a bridge too far for this District Court to assume that the United States Supreme Court was sub silentio overruling the determinations of several circuits that § 3582(c)(2) is jurisdictional in nature. Indeed, even after Koons , courts continue to recognize the deep circuit split on this question. See e.g., United States v. Miamen , No. CR 18-130-1 WES, 2020 WL 1904490, at *2 (D.R.I. Apr. 17, 2020) ; United States v. Lugo , No. 2:19-CR-00056-JAW, 2020 WL 1821010, at *3 (D. Me. Apr. 10, 2020) ; United States v. Johnson , No. CR RDB-14-0441, 451 F.Supp.3d 436, 441–42 (D. Md. Apr. 3, 2020).
III. Does the Court have Jurisdiction?
18 U.S.C. § 3582(c)(1)(A)(i) provides that:
The court may not modify a term of imprisonment once it has been imposed except that ... in any case ... the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission ....
The Motion before the Court was brought by Mr. Smith, not the BOP. That means the Court only has jurisdiction if the Motion was brought "after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier ...." A. Mr. Smith's April 2020 Request to the BOP.
Mr. Smith's April 22, 2020 compassionate release request does not (yet) give the Court jurisdiction to evaluate the merits of a compassionate release motion. It has been only 22 days since Mr. Smith submitted that request to the warden. Depending on whether and how the warden addresses that request, the Court may soon be capable (jurisdictionally) of entertaining a motion for compassionate release based on that request. For example, if the warden does not respond to the request within 30 days, the Court would clearly have jurisdiction over a motion for compassionate release filed by Mr. Smith on Day 31.
The United States thinks that the Court's analysis should end here. It notes that Mr. Smith's April 2020 request was the only of his three requests that addressed the COVID-19 concerns that now predominate his instant Motion. From that premise, the United States argues that Mr. Smith's earlier requests to the warden—which occurred well before the COVID-19 outbreak and thus did not mention COVID-19—cannot provide the Court jurisdiction to decide a COVID-19 related compassionate release motion. Mr. Smith, on the other hand, argues that his earlier requests to the warden—which he claims were administratively exhausted—provide this Court jurisdiction, and that such jurisdiction extends to the consideration of any subsequent circumstance (like COVID-19) that might bear on the compassionate release decision.
United States' Supp. Br. (Doc. 436) at 2.
The Court need not resolve this weighty dispute. As explained below, the April 2019 request for compassionate release does not provide the Court jurisdiction because Mr. Smith failed to exhaust his administrative remedies. And the Fall 2018 request for compassionate release is too far removed from the current Motion to provide a jurisdictional hook.
B. Mr. Smith's April 2019 Request to the BOP.
Mr. Smith's 2019 request was stamped "received" by the warden of his facility on April 5, 2019. Twenty days later, on April 25, 2019, the warden denied the request and informed Mr. Smith of his right to administratively appeal. There is no evidence that Mr. Smith administratively appealed the warden's denial. But Mr. Smith takes the position that an administrative appeal is not required by the plain language of § 3582(c)(1)(A). Instead, he asserts that the Court has jurisdiction so long as (1) he filed a request with the warden, and (2) 30 days passed from the date the warden received the request. Mr. Smith's position is reasonable and has been adopted by some district courts. It is based on a pretty straightforward interpretation of the phrase "or the lapse of 30 days from the receipt of such request by the warden of the defendant's facility." Mr. Smith, and the district courts that agree with him, interpret this phrase to require nothing more than the passage of time. The United States also takes this position, although it has taken the opposite position in some other district courts. Under this interpretation, a defendant may "short-circuit the Bureau of Prison's administrative appeal procedures simply by waiting 30 days after filing his request, despite the warden timely acting on that request."
Earnes Lee Smith, March 14, 2019, Appl. for Compassionate Release under PS 5050.49; Text Order (Doc. 434).
United States' Supp. Br. (Doc. 436) at 2.
Def's. Second Reply to United States' Resp. to Mot. for Compassionate Release (Doc. 435) at 1-2. Mr. Smith did not cite any authority for this proposition, but the Court has found some persuasive authority for it.
See generally United States v. Weidenhamer , No. CR-16-01072-001-PHX-ROS, 2019 WL 6050264, at *2-3 (D. Ariz. Nov. 8, 2019) (explaining in detail the two prevailing views).
See e.g., United States v. Miller , No. 2:16-CR-00269-BLW, 2020 WL 113349, at *2 (D. Idaho Jan. 8, 2020) ; United States v. Bolino , No. 06-CR-0806 (BMC), 2020 WL 32461, at *2 (E.D.N.Y. Jan. 2, 2020) (noting the government's argument that, although the defendant "may have taken the initial step of filing his application with the warden of his facility ... he has neither represented nor shown that he pursued an initial denial through the next level of appealing to the Regional Director and, if unsuccessful there, to the General Counsel of the BOP").
Miller , 2020 WL 113349, at *2.
The foregoing interpretation is not universally shared. Some district courts have interpreted the phrase at issue to mean that a defendant must fully exhaust his administrative remedies unless he hasn't received an initial answer from the warden within 30 days of the warden's receipt of his request. Put another way, a "lapse of 30 days" only occurs if the warden "fail[s] to act on the defendant's request for a period of 30 days." This is fairly consistent with the legal dictionary definition of "lapse," which is defined as "[t]he termination of a right or privilege because of the failure to exercise it within some time limit." Under this approach, a defendant may go "directly to court if a warden is not responsive to a request but, if a warden does act within 30 days, the defendant would be required to pursue an administrative appeal" before going to court. In other words, the statute "includes a limited futility-like exception" to its general requirement of and preference for administrative exhaustion. The 30-day lapse language stops a warden from intentionally or unintentionally preventing or delaying a defendant's statutorily-required efforts to fully exhaust.
Weidenhamer , 2019 WL 6050264, at *2 ; see also United States v. Estrada Elias , No. CR 6:06-096-DCR, 2019 WL 2193856, at *2 (E.D. Ky. May 21, 2019) (concluding that the First Step Act did "not alter the requirement that prisoners must first exhaust administrative remedies before seeking judicial relief"); United States v. Keith , No. CR-16-62-D, 2019 WL 6617403, at *1 (W.D. Okla. Dec. 5, 2019) ("To [exhaust], he must first submit his request to BOP and either (1) complete the administrative appeal process, if BOP denies his request; or (2) wait 30 days from BOP's receipt of his request to deem its lack of response a denial of his request.").
Miller , 2020 WL 113349, at *2.
Lapse , Black's Law Dictionary (11th. ed. 2019).
Weidenhamer , 2019 WL 6050264, at *3.
United States v. Roberts , No. 18-CR-528-5 (JMF), ––– F.Supp.3d ––––, ––––, 2020 WL 1700032, at *2 (S.D.N.Y. Apr. 8, 2020).
Because the interpretation of § 3582(c)(1)(A) is a jurisdictional issue, the Court must interpret the statute for itself, irrespective of the parties' agreement as to the meaning of the statute. The Court is persuaded that the latter group of courts have the correct interpretation of the statute. But there's no doubt that this is a close call of statutory interpretation. Indeed, the Court has been wrestling with it for several days and cannot claim to be certain of anything except that (1) the statute would benefit from clarifying amendments in Congress and (2) this Court will not be the last word on the question.
Mr. Smith's interpretation is fairly attractive when the phrase "the lapse of 30 days from the receipt of such a request by the warden" is viewed in isolation. But that is not the right way to read a statute. "Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts." Words should not be interpreted in a vacuum. This concept must go hand in hand with the "ordinary-meaning rule," which is regarded as "the most fundamental semantic rule of interpretation." Under this canon of construction, "words generally should be ‘interpreted as taking their ordinary ... meaning ... at the time Congress enacted the statute.’ " When a term is subject to multiple ordinary meanings, courts "should assume the contextually appropriate ordinary meaning unless there is reason to think otherwise."
Does v. Gillespie , 867 F.3d 1034, 1043 (8th Cir. 2017) (quoting Antonin Scalia & Bryan A. Garner , Reading Law : The Interpretation of Legal Texts 167 (2012)).
Antonin Scalia & Bryan A. Garner , Reading Law : The Interpretation of Legal Texts 70 (2012).
Antonin Scalia & Bryan A. Garner , Reading Law : The Interpretation of Legal Texts 70 (2012).
Structurally, § 3582(c)(1)(A) appears to present a defendant's options for filing a motion in a hierarchical fashion. Prior to the First Step Act, only the BOP could present a motion under § 3582(c)(1)(A). Although the First Step Act effectively opened the door for a defendant to file a motion on his own behalf, it did not do away with the BOP motion. Indeed, the amended statutory structure and language suggests that the BOP is supposed to have the first and second bite at the apple. Otherwise, why make a defendant file a request for the BOP to file a motion on his behalf? Why require a defendant to wait any time at all for the warden's response before going to court? And why even mention a defendant having to "fully exhaust[ ] all administrative rights to appeal" the BOP's decision? The statute's language and structure indicate a statutory preference for exhaustion of the administrative process—a defendant should only go to court on his own if his good faith efforts within the BOP have failed or stalled.
See supra note 11.
Mr. Smith's reading requires the conclusion that what Congress gave with one hand, it took away with the other. His reading would render the statute's requirement of "full exhaustion of all administrative rights to appeal" a mirage—or at the very least, it would turn what is best read as a requirement of full exhaustion into a defendant's voluntary option of full exhaustion. Mr. Smith's interpretation of "lapse of 30 days" effectively eliminates any reason at all for a defendant to engage in the administrative appeals process. A defendant need only file his initial request to the warden, wait 30 days, and then file a motion in district court. The defendant has no incentive—let alone a requirement—to administratively appeal a warden's denial.
See United States v. Nance , No. 7:92CR00135, 2020 WL 114195, at *2 (W.D. Va. Jan. 10, 2020) (reasoning that reading lapse as nothing more than the passage of time "would ignore the extreme unlikelihood of any administrative appeal within the bureaucracy of the Bureau of Prisons being completed in 30 days").
Congress had to have known, when drafting the First Step Act, that the process for full exhaustion takes far longer than 30 days. Indeed, BOP regulations at the time the First Step Act was passed made clear the timetable involved: the Warden has 20 days from receiving the initial request to issue a response; the defendant then has 20 days from the date the Warden signed the response to appeal to the appropriate Regional Director; the Regional Director then has 30 days from the date the appeal is received to issue a response; the defendant then has 30 days from the date the Regional Director signed the response to appeal to the General Counsel; and finally, the General Counsel has 40 days from the date the appeal is received to issue a final administrative decision.
"When an inmate's [compassionate release] request is denied by the Warden .... [t]he inmate may appeal the denial through the Administrative Remedy Procedure detailed in (28 CFR part 542, subpart B)." 28 C.F.R. § 571.63.
One of three conclusions can be drawn from Congress's knowledge of this process: (1) Congress was implicitly forcing the BOP to revamp its entire administrative process and squeeze that entire process, including all administrative appeals, into 30 days; (2) Congress made mere surplusage out of its "full exhaustion of all administrative rights to appeal" language; or (3) the "lapse of 30 days" refers to the warden's failure to act within 30 days, as opposed to simply 30 days passing. Option (1) seems highly unlikely, especially since Congress could have just written such direction into the statute if it wanted to do so. Option (2) flouts a well-trod canon of statutory construction. Option (3) is what's left.
Courts should "lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory." Antonin Scalia & Bryan A. Garner , Reading Law : The Interpretation of Legal Texts 174 (2012) (quoting Thomas M. Cooley , A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the State of the American Union 58 (1868)).
Other subsections within § 3582 support the Court's interpretation. For example, § 3582(d)(2)(C)(iii) provides that the BOP "shall" ensure that its facilities provide defendants notice of their "right to appeal [to a court] a denial of a request described in [subsection (c)(1)(A) ] after all administrative rights to appeal within the [BOP] have been exhausted. " Congress requires that "all [BOP] facilities regularly and visibly post" this information, "including in prisoner handbooks, staff training materials, and facility law libraries and medical and hospice facilities." Congress also requires all BOP facilities to make this information available to all prisoners "on demand." But this statutorily-required notice would be at best misleading if § 3582(c)(1) was interpreted to mean that, in reality, full exhaustion of all administrative rights to appeal was never a required prerequisite to seeking judicial relief. If the 30-day lapse language of subsection (c)(1)(A) was really a blanket grant to defendants of the right to engage the court after 30 days passed from the warden's receipt of a request—regardless of what the warden did—it seems quite the omission for Congress not to require the BOP to include that information in its statutorily-mandated notices, handbooks, and other materials. For Mr. Smith's reading of subsection (c)(1)(A) to be correct, he would have to take the position that Congress either intentionally or inadvertently failed to require the BOP to inform a defendant of his most straightforward path to judicial relief, even "upon demand." That seems unlikely to be the case. What seems more likely is that § 3582(d)(2)(C)(iii)'s notice requirements confirm that § 3582(c)(1)(A)'s general rule is to require a defendant to exhaust all potential administrative appeals before seeking judicial relief.
18 U.S.C. § 3582(d)(2)(C)(iii) (emphasis added).
For yet another example, consider § 3582(d)(3)(K). That subsection requires the BOP to annually document to Congress "the number of motions filed by defendants with the court after all administrative rights to appeal a denial of a sentence reduction had been exhausted, the outcome of each motion, and the time that had elapsed between the date the request was first received by the [BOP] and the date the defendant filed the motion with the court." This subsection strongly supports the idea that the principal statutory route for a defendant to bring a motion to court is after fully exhausting his administrative remedies. It is likewise evidence of the unlikelihood that Congress created an exception that would swallow the rule when it used the 30-day lapse language. Additionally, the fact that Congress wants to know the length of time between the date a request was first received by the BOP and the date the defendant filed a motion with the court after full administrative exhaustion suggests that Congress knew it was not jamming the entire administrative process into a 30-day window.
For all the reasons stated above, the Court concludes that a defendant may only file a motion for compassionate release if he has fully exhausted his administrative remedies, or if the warden fails to act on his request within 30 days of receipt. Because the warden here responded to Mr. Smith's request in less than 30 days, Mr. Smith was required to fully exhaust his administrative remedies prior to filing this Motion. He did not do so. Instead, Mr. Smith sat on the warden's timely denial for nearly a year before attempting to short-circuit the BOP's administrative appeals process in the wake of a pandemic. In such circumstances, the April 2019 request does not give the Court jurisdiction over his instant Motion.
C. Mr. Smith's 2018 Request to the BOP.
Mr. Smith's Fall 2018 request fares no better in terms of providing this Court with jurisdiction. That is because, as another district court in this circuit has concluded, § 3582(c)(1)(A) "require[s] a defendant to exhaust his administrative remedies in reasonable proximity to the filing of any motion seeking" compassionate release.
United States v. Newell , No. 8:08CR163, 2020 WL 1820268, at *2 (D. Neb. Apr. 9, 2020).
Under § 3582(c)(1)(A), a defendant may bring a motion for compassionate release "after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier ...." When a parent tells a child that the child needs to be home after supper, does the parent mean the child can come home the next day? No. When a judge tells a law clerk to draft an opinion after a vacation, would it be reasonable for the law clerk to delay in drafting the opinion for two years, and after pursuing ten other projects? No. In those circumstances, the ordinary meaning of "after" contemplates some reasonable time and sequence following the triggering event, with what is reasonable being based on the context of the direction. Similarly, here, the ordinary meaning of the preposition "after" in § 3582(c)(1)(A) denotes a reasonable proximity between a defendant's administrative exhaustion and the filing of his motion.
18 U.S.C. § 3582(c)(1)(A) (emphasis added).
"One should assume the contextually appropriate ordinary meaning unless there is reason to think otherwise." Antonin Scalia & Bryan A. Garner , Reading Law : The Interpretation of Legal Texts 70 (2012).
This should not be a particularly controversial interpretation. The Court notes that the same subsection tells the Court that it "may reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) ...." Presumably, Mr. Smith would agree that this is not an invitation for the Court to consider the factors set forth in § 3553(a), wait two years, and then render its decision. That would be an unreasonable interpretation of the statute.
18 U.S.C. § 3582(c)(1)(A) (emphasis added).
The Court also notes that, under § 3582(c)(1)(A)(i), a defendant is only eligible for release if he demonstrates "extraordinary and compelling reasons." Approved reasons for release include: (1) terminal illnesses; (2) serious, age-related "deterioration in physical or mental health" in a defendant that has already served ten-years or seventy-five percent of his sentence; and, (3) the "death or incapacitation" of the caregiver of the defendant's minor child, or the incapacitation of the defendant's spouse or partner when the spouse or partner has no "available caregiver" other than the defendant. Inherent to all of these approved "extraordinary and compelling" reasons is the underlying notion that time is of the essence. Reading the statute as a whole reinforces the idea that "after" in subsection (c)(1)(A) has a reasonable proximity element to it.
Federal Sentencing Guidelines § 1B1.13 cmt. 1 ( U.S. Sentencing Comm'n 2020).
Moreover, as discussed above, the statute gives the BOP the first bites at the apple with respect to a defendant's arguments for compassionate release. An open-ended interpretation of the word "after"—allowing a motion to be made in court 10 years after the exhaustion of the BOP process, for example—would be inconsistent with the rest of the subsection. Either the Court would have to base its decision on very outdated medical records and plans for release, or the Court would have to address entirely new and significantly updated arguments that the BOP never got the chance to examine. The Court's reading of "after" mitigates this potential statutory inconsistency and is the better reading of the language in the context of the statute as a whole.
So, what constitutes reasonable proximity? How stale is too stale? The Court need not (and probably should not) pick a precise time cut-off. Whatever the boundaries of reasonable proximity might be, the 2018 request—exhausted on December 4, 2018—is not reasonably proximate to his April 2020 Motion. The 2018 request is based on outdated information regarding Mr. Smith's medical issues, age, percentage of sentence served, and (presumably) plans for release. Moreover, the Court has already (in early 2019) indicated that Mr. Smith's 2018 request lacked merit. Rather than continuing in his pursuit for compassionate release following the Court's ruling, Mr. Smith filed a new request with the warden of his facility, indicating an intent, at least to some degree, to abandon the 2018 request and begin anew. Indeed, Mr. Smith has filed two new requests with the warden of his facility since the 2018 request.
Ex. 2 to Def's. Mot. for Compassionate Release (Doc. 429-2) at 2.
The only documentary evidence of Mr. Smith's plans for release comes from Mr. Smith's 2019 request to the warden. See Earnes Lee Smith, March 14, 2019, Appl. for Compassionate Release under PS 5050.49.
Order Denying Mot. to Appoint Counsel (Doc. 427).
As mentioned above, Mr. Smith's instant Motion expressly relies on at least two medical conditions that were never presented in his 2018 request—presbyopia and joint disorder. Furthermore, the medical records attached to Mr. Smith's Motion include at least four diagnoses that were not part of his 2018 request, but that were part of his medical records at the time of his 2019 request. And, of course, there's COVID-19, which didn't even arise until 2020. Under these circumstances, the 2018 request is too stale—not reasonably proximate to the instant Motion—to give the Court a jurisdictional hook to consider the merits of Mr. Smith's Motion.
Ex. 1 to Def's. Mot. for Immediate Release (Doc. 429-1) at 2.
Id. at 2-3.
IV. Conclusion and Ruling.
Because the Court lacks jurisdiction, the Court DISMISSES Mr. Smith's Motion without prejudice.
IT IS SO ORDERED this 14th day of May 2020.